Malicious Prosecution/Abuse of Process

As a criminal defense attorney when a case is concluded favorably for my client, I am often asked about civil remedies that may exist. This article will give some perspective on remedies available under Virginia law to those wrongfully charged and prosecuted with crimes in Virginia. 

First, this article is not comprehensive as to every remedy that may exist but will focus on the main civil cause of action in Virginia called malicious prosecution and/or abuse of process.  Malicious prosecution in Virginia is a civil action that can be taken out against an individual who caused a criminal charged to be instituted and prosecuted against someone with the specific intent to harass or misuse the criminal justice system.  In order to sue someone in a civil proceeding for taking out a false charge against you, the first hurdle you must pass is that the criminal charge resolved favorably in the criminal defendant's favor.  This means, if you were charged with a crime in Virginia, you had to try that case and beat it at trial, or the prosecutor dismissed the charge against you prior to trial. You must have a dismissal of the charge. If you received a deferred finding or were found guilty, you cannot pursue a malicious prosecution claim.  Second, in criminal cases, the standard for conviction is reasonable doubt. The law would rather see 9 out of 10 guilty men go free than 1 out of ten innocent men be found guilty. So, just beating a criminal charge does not mean you are innocent of the charge. A civil case for malicious prosecution does not allow you to sue someone simply because you beat a criminal case. You have had to been innocent of the charge AND you can prove that innocence in a court of law. So assuming you are innocent of the charge we then must go to the third test.

Third, you must prove that the prosecution against you was taken out with the specific intent to harass you or to misuse the criminal justice proceedings to gain leverage in a civil case.  Three big hurdles. So here are some examples.  Probably where the criminal justice system is most abused is in domestic relations situations. It is very common that a spouse will fabricate criminal charges against their spouse for the purposes of gaining civil advantage in custody cases or to obtain a protective order. (For more on protective orders, click here: Protective Orders  ). A spouse goes to a magistrate and says the spouse hit them. With no injuries present, almost reactively, the magistrate will issue a domestic violence warrant and an emergency protective order granting the complainant exclusive temporary possession of the marital residence.  This is very effective to get leverage in a civil divorce. Usually the "victim" gets the spouse out, gets no contact orders in place against the children and has a ton of momentum headed into the custody fight. Lots of incentive to manufacture criminal conduct by a spouse, especially when money is tight and the ability to hire lawyers is limited. Even though abuse of the criminal justice system is very high in domestic violence cases, very rarely do parties take out civil cases, primarily because getting convicted for domestic assault is very easy. If you cannot pass the first hurdle (being found not guilty) you cannot sue. Taking a deferred finding in a domestic violence case, or what is commonly called "first offender" is an admission of guilt. You cannot sue if you are legally admitting to your guilt.  More common abuses occur in criminal court between non-spouses. Situations where neighbors harass each other and take out charges for trespass, assault and battery or stalking are ripe for abuse and are the best situations to prove abuse of process. Usually, the police are not involved. In a situation where a neighbor or a co-worker may take a charge out against you that you can prove did not occur with witness testimony or other evidence are the best cases to consider malicious prosecution cases. A very good example involves retaliatory warrants. A retaliatory warrant is a situation where, you, as the victim of a crime, take out a charge against someone, only to find out that once that person gets arrested, they take a charge out against you for the same or similar conduct.  I have represented countless numbers of clients who this has happened to.  You are in the grocery store and get into an altercation with another customer. You get hit to the ground. Cops come, nothing happens. You go to the magistrate and take an assault charge out (as you rightfully should). A week later you are charged with an assault charge as well based on the defendant swearing a warrant against you for assaulting them.  You get arrested, and have to hire an attorney only to go to court, where the truth is revealed, your criminal charge is dismissed and the other guys charge results in a conviction.  If you have a case like this, you are a good candidate to consider a malicious prosecution case.  The most egregious type of abuse of the criminal justice system involves someone convincing the police a crime occurred when no other evidence of the crime exists other than the "victims" testimony. This is most common in date-rape cases. In Virginia there is no statute of limitations for rape. So, a man who has had sexual intercourse with any women from the start of time to present could find that the woman has taken a criminal charge out alleging a rape has occurred. Think this is uncommon? Its not. It happens every day. Say you have an ex-girlfriend who goes to the police today and says, 6 months ago, while drunk, she had sex with you, but she did not consent to the sexual encounter. That allegation alone could cause a felony charge against you for rape. 

There are hundreds of examples I could give in this article of where abuses occur. But what is most important is that if you want to sue someone for taking false charges out, you have to fight tooth-and-nail in your criminal case to win that. You cannot be found guilty. So assuming you have a case for malicious prosecution, what can you sue for? Well, you can seek recovery for 100% of your attorney fees spent to defend you in the criminal case. You can also recover the attorney fees for the expungement of your record (more on expungements: Expungements ).  Also, you can recover any lost wages you suffered while you were in jail or defending yourself in court. Finally, if you have any other damages that you can prove, such as if you were a school teacher charged with a crime and simply because you were charged you got fired from the school system and are not employable, then you have tremendous lost earnings.  Finally, you can usually recover for losses to you reputation and good name.  This article does not address suing the police for taking false charges out. In almost every situation, the police are so immune from civil liability for taking out criminal charges that it is virtually impossible to file a cause of action that would not get thrown out almost immediately. If you are interested in suing the police, seek an attorney who advertises for what are commonly called 1983 actions.  When I take a malicious prosecution case, I am very careful to manage client expectations in the beginning. These cases are expensive, generally $15k-$35k. The process takes 1-2 years. And finally, since you are suing an individual, it is highly unlikely that even if you win you will ever get paid. Collecting a judgment in Virginia is an entirely separate discussion. You will spend big money just to get the judgment. The purpose of the malicious prosecution action is not to recover money (although that is certainly a plus), but to have a civil court rule in your favor, on the record, that you not only were not guilty of a crime but were totally innocent and that the person who took the charge out did so for ill purposes. You do not get this in a criminal proceeding. All a judge does in a criminal case is find you not guilty, or better said that reasonable doubt existed where you could not be found guilty of a crime.  If you are innocent, you may want a more extensive finding, in that you were innocent. Hearing a judge or jury find that you were the innocent party is vindication that many people crave starting from the minute the handcuffs are first placed on them at the inception of the criminal case. A malicious prosecution case generally needs to be filed within 1 year of the conclusion of the criminal proceedings. Malicious prosecution is considered an intentional tort, and intentional torts in Virginia must be filed with a civil court within 1 year.  The case starts by the filing of a complaint with a Circuit Court. Typically the case should be filed in the Circuit Court where the crime was prosecuted. The complaint is very important, as it is your one and only chance to paint the canvass of your innocence. The cases I have filed have been hundreds of paragraphs in length citing every detail that could be cited for the purposes of establishing a record of every fact that supports your innocence. From there you can expect the Defendant to hire counsel and motions will begin to be filed. Discovery is conducted and depositions of witnesses occur. Finally, it is your day in Court. A jury is convened and it is your day to prove your innocence and the victimization you have suffered by the civil defendant. A jury then decides if you have carried your burden. If so, they rule in your favor and will assess damages.  I have handled several malicious prosecution cases in Virginia. If you or someone you know has been a victim of someone taking false criminal charges against them, and they meet the standards of this article (found not guilty, actually innocent and the criminal charges were taken out with intent to harass or misuse the system) and all of this has occurred within 1 year of the ending of the criminal case, then contact me for a case review. If we decide to review you case, I will need a full copy of your criminal file.  Attorney Timothy Anderson  877-214-9640 - www.virginialawoffice.com

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